Police, Crime, Sentencing and Courts Bill (Sixteenth sitting)

Alex Cunningham Excerpts

Committee stage
Thursday 17th June 2021 Public Bill Committees

This amendment is consequential on Amendment 143.

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 9, in clause 163, page 180, line 30, leave out from “for” to “or” in line 32 and insert

“a serious violent, sexual or terrorism offence specified in regulations made by the Secretary of State by statutory instrument”.

This amendment would make the list of offences subject to lifelong disclosure specified in regulations rather than set in primary legislation.

Clause 163 would allow some custodial sentences of over four years to become spent after a certain period of time, excluding convictions for serious sexual violence and terrorist offences. It would also reduce the existing rehabilitation periods for certain other disposals given or imposed on conviction. I am pleased to say that we are very supportive of the Government’s direction of travel on criminal record reform, although as ever, I wonder whether it can go that little bit further, and do all the more good for it. The focus on employment discrimination is correct: we know that employment is a critical factor in preventing reoffending and maintaining the wider wellbeing of people with criminal records. One proven way to help people with criminal records into work is to reduce the period for which they have to disclose their record. These changes will impact as many as 50,000 people a year, and will make an appreciable difference to their life.

While we are supportive of the Government’s efforts to help people with criminal records into work, I note that the charity Unlock, which specialises in this area, has said that it

“cannot agree that the white paper proposals alone will have an appreciable impact on reoffending or employment.”

The reforms are welcome, but a major concern of ours is that they are not necessarily grounded in evidence. Let me be clear: there is evidence that reducing spending periods will reduce discrimination and help people with criminal records into employment, and that being in employment is one of the most important factors in preventing reoffending. However, there is not evidence that the specific reductions that the Government have proposed are the most effective way of reducing employment discrimination and/or preventing reoffending. As Unlock noted in its response to the White Paper,

“Even where there are reductions, the MoJ has not discussed how or why they have arrived at these figures. While Unlock do support these reductions, it is concerning not to see a base of evidence offered for those choices, or even a broader public policy justification. To see disclosure reduced from two years to one year is positive; but why is one year the correct length? Why not six months, or 18 months?”

Policies are more likely to achieve their aims if they are rooted in clear evidence. Can the Minister share with us the Department’s reasoning in coming up with these numbers? I agree that a shorter spending time is better, but I am interested in why the Government have chosen to place the limits where they have.

It has been only a few years since the Government’s previous set of radical reforms in this area came into force under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, having been proposed in the 2012 Ministry of Justice “Breaking the Cycle” White Paper. I am sure the Government would agree that it is preferable to get it right this time, and not need another set of so-called radical reforms a few years hence.

I turn to the impact on children’s spending periods. Under the Bill, children’s rehabilitation periods continue to be half those of adults. The Youth Justice Board queries whether that is the correct way to do it and advocates instead for an approach that takes into account the differences in child offending patterns. It sounds eminently sensible to me that the Government should base child rehabilitation periods on evidence of child reoffending and what actually works to rehabilitate children, rather than simply halving the number in the adult model. I would be interested to hear from the Minister whether his Department has given any consideration to that, or might look at it in the future.

That said, the Opposition are certainly in favour of the proposals on child rehabilitation periods, as we would like them to be reduced. As the Howard League notes in its briefing, the impact of the childhood criminal record system in England and Wales is

“extremely punitive by international standards”.

These proposals will help more people who commit an offence as children to turn their lives around and move away from offending behaviour, so we are glad to support them. However, I put on record the Opposition’s concern that these proposals for child rehabilitation periods will still exclude those who turn 18 before conviction. I will speak further on this next week when we come to the relevant new clauses that we have tabled, but it causes us disquiet that not every child who commits an offence will have a child rehabilitation period. That is especially relevant because the number of children who turn 18 while awaiting trial is increasing as a result of the unprecedented court backlog.

Finally, before I turn to the amendments, I want to touch on the fact that this direction of travel, welcome though it certainly is, makes some disparities in the disclosure regime even wider. One example is motoring offences, which I will speak about shortly in relation to amendment 165. I would welcome information about the work ongoing in the Department on this topic that could reassure us that the Government’s ambitions are not limited to these proposals.

I will be relatively brief on amendment 9, but first I thank Unlock for its helpful input. Amendment 9 would mean that the list of offences that are subject to lifelong disclosure was specified in regulations, rather than in primary legislation. This is effectively a future-proofing amendment, which will make future Government reforms in this area easier to achieve. The list could be more easily amended over time in response to changing needs and circumstances.

The Bill provides that some convictions that previously led to a sentence of more than four years should become spent after seven years. Before this, all sentences of more than four years had to be disclosed for life. There will be a tremendous positive impact on the lives of people with criminal records covered by this proposal. The reach of the policy is clearly restricted, because the Ministry of Justice proposes that

“serious sexual, violent and terrorist offences”

be excluded, and I make it clear that we have no opposition to that restriction.

The offences that will be excluded are those covered by schedule 18 of the sentencing code. That in itself illustrates why it would be simpler to keep the list in regulations. After the sentencing White Paper was published, but before the sentencing code became law, the Lord Chancellor intended to use the list from schedule 15 of the Criminal Justice Act 2003 to determine which offences would be excluded. This list fulfils a similar purpose, but I think that demonstrates the point I am trying to make.

In fact, I hope that schedule 18 of the sentencing code is more appropriate, because Unlock has estimated that around 65% of all sentences of over four years are imposed for crimes on the list in schedule 15 of the Criminal Justice Act, meaning that the Government’s proposals would affect only a minority of those with criminal records. Furthermore, the offences listed in schedule 15 had a very wide range of outcomes: 27% of schedule 15 offences in 2019 received only community orders, despite being classified as serious. It would be helpful to hear some reassurance from the Minister that schedule 18 is more fit for purpose. Regardless, I am sure that he can understand the benefits of future flexibility. I hope that he will support this simple amendment.

I turn to amendment 165.

[The Chair]

No, I think it would be better to stick to the sequence on the selection list.

[Chris Philp]

Given your direction, Mr McCabe, I will not speak to clause 163 substantively just yet—or, indeed, to amendment 165—but will speak narrowly and specifically to amendment 9.

I understand the spirit of the shadow Minister’s amendment, but I observe that it is not often that the Opposition propose conferring on Government regulation-making powers that they have not asked for. It is usually the other way around, is it not?

The Government take the view that schedule 18 of the sentencing code sets out the list of most serious offences. They are the same offences used to assess dangerousness. Using schedule 18 ensures simplicity and consistency between assessing dangerousness and requiring longer disclosure. We think it is more straightforward and transparent for those people subject to disclosure requirements to know that that is not a moving target; they know the list is fixed and will not change.

The power that the shadow Minister generously proposes conferring on the Government might lead to unpredictable changes for the people affected. For those two reasons—predictability and consistency—we prefer to set things out in statute, as is currently proposed, via schedule 18 of the sentencing code.

I will briefly answer one question that the shadow Minister posed—I might address some other questions later—on research on whether these are the right lengths of time, or whether more can be done in future. Yes, I confirm that we will continue to look at this, and to conduct research as appropriate to ensure that the balance is struck between rehabilitation and protecting the public.

[Alex Cunningham]

The fact that the Government have missed the point about the narrow application of the measure and how very few people will be caught by it is lamentable. I will not press the amendment to a vote at this stage, but we may well revisit the matter in future. It is great to have such provisions, but they affect only a minority of people in the criminal justice system, when they could benefit so many more. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 137, in clause 163, page 181, line 27, at end insert—

“(3A) In subsection (2) (rehabilitation periods), in the words before paragraph (a), for ‘(3) and’ substitute ‘(2A) to’.”

This amendment and Amendments 138 to 140 make provision about the rehabilitation period that applies to a person who is subject to a relevant order where the last day on which the order is to have effect is not provided for by or under the order.

Amendment 138, in clause 163, page 182, line 8, at end insert—

“(4A) After subsection (2) (and after the table in subsection (2)(b)) insert—

‘(2A) Subsection (2B) applies where provision is made by or under a relevant order for the order to have effect—

(a) until further order,

(b) until the occurrence of a specified event, or

(c) otherwise for an indefinite period.

(2B) The rehabilitation period for the order is the period—

(a) beginning with the date of the conviction in respect of which the order is imposed, and

(b) ending when the order ceases to have effect.’”

See the explanatory statement for Amendment 137.

Amendment 139, in clause 163, page 182, line 9, leave out subsection (5) and insert—

“(5) For subsection (3) (rehabilitation period for community etc order which does not provide for the last day on which the order has effect) substitute—

‘(3) The rehabilitation period for a relevant order which is not otherwise dealt with in the Table or under subsections (2A) and (2B) is the period of 24 months beginning with the date of conviction.’”

See the explanatory statement for Amendment 137.

Amendment 140, in clause 163, page 182, line 11, at end insert—

“(5A) In subsection (4)(b) (rehabilitation period for other sentences), for ‘subsection (3)’ substitute ‘any of subsections (2A) to (3)’.”

See the explanatory statement for Amendment 137.

Amendment 141, in clause 163, page 182, line 29, after “order” insert “—(a)”.

This amendment and Amendment 142 make provision about the rehabilitation period that applies to a person who is subject to an order which imposes requirements or restrictions on the person or is otherwise intended to regulate the person’s behaviour.

Amendment 142, in clause 163, page 182, line 31, at end insert “, and

(b) for paragraph (g) substitute—

‘(g) any order which—

(i) imposes a disqualification, disability, prohibition, penalty, requirement or restriction, or

(ii) is otherwise intended to regulate the behaviour of the person convicted,

and is not otherwise dealt with in the Table,’.”

See the explanatory statement for Amendment 141.

Amendment 143, in clause 163, page 182, line 31, at end insert—

“(8A) In section 6(5) (the rehabilitation period applicable to a conviction), for the words from ‘by virtue of’ to ‘or other penalty’ substitute ‘to an order within paragraph (g) of the definition of “relevant order” in section 5(8) above’.

(8B) In section 7(1)(d) (limitations on rehabilitation under the Act), for ‘or other penalty’ substitute ‘, penalty, requirement, restriction or other regulation of the person’s behaviour’.

(8C) In paragraph 5(b) of Schedule 2 (protection for spent cautions), after ‘prohibition’ insert ‘, requirement’.”—(Chris Philp.)

This amendment makes amendments to the Rehabilitation of Offenders Act 1974 that are consequential on or otherwise related to the amendments to that Act made by Amendment 142.

[Alex Cunningham]

I beg to move amendment 165, in clause 163, page 182, line 45, at end insert—

“(12) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order 2014 (S.I. 2014/423) is amended by the omission of article 3.”

This amendment would provide that the changes to the rehabilitation periods in the Rehabilitation of Offenders Act 1974 made by sections 139 and 141 and Schedule 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would apply to road traffic endorsements.

As I mentioned, the welcome changes in clause 163 widen some disparities in the disclosure system, leaving certain offences extremely out of step with others. A particularly notable area where the discrepancy would manifest itself is motoring offences. That was raised in the evidence session by Sam Doohan of Unlock and Helen Berresford of Nacro. I thank Nacro for its input on this amendment.

A person who is convicted of, or receives a fixed penalty for, an offence listed on schedule 2 of the Road Traffic Offenders Act 1988 is required to disclose that information for a period of five years if they were an adult when convicted, or of three years if they were a juvenile when convicted. Motoring convictions have some of the longest rehabilitation periods when it comes to criminal record disclosure. In fact, adult motoring convictions that receive an endorsement at court have a five-year rehabilitation period. That means that, under the Bill, a minor motoring offence would be disclosed for more time than some custodial sentences and become even more of an outlier in the disclosure regime.

As Sam Doohan said in an evidence session:

“People end up having to disclose, say, a speeding ticket for five years, which is longer than if they had gone to prison for a year.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 99, Q155.]

I am sure that the Government recognise the nonsense in that. Current rules already have a disproportionate impact on people who apply for jobs because they have to disclose those convictions for five years. Now that will be even more disproportionate because they will often have to disclose for far longer than for non-motoring offence convictions that receive the same disposal. That affects a large number of people; more than half of all convictions every year relate to motoring offences.

--- Later in debate ---

[Chris Philp]

As the shadow Minister said, the amendment would change the current rehabilitation period for endorsements that are imposed in respect of motoring convictions from five years to nil.  Unless another disposal is given for the same motoring conviction that attracts a separate rehabilitation period, the amendment would result in some motoring convictions being spent immediately and having no rehabilitation period. 

It is worth saying that the Department for Transport leads on the rehabilitation periods for motoring penalties. It is a complex area with a combination of fines, driving bans and penalty points, as well as community and prison sentences, which are an important part of the system to reduce dangerous and careless behaviour on our roads.  That includes the way in which the provisions interact with the insurance system, as the shadow Minister said.

Clearly, if someone gets speeding points and that has consequences for their insurance premium for some time, it is a disincentive to drive dangerously. There is also a reasonable link between someone who drives carelessly or dangerously and the risk they pose, which leads to higher insurance premiums. There is therefore a certain justice to that link.

The range of penalties and the current penalty points system has been developed to prevent low standards of driving behaviour, which have the potential to cause serious harm to other road users and, in the worst cases, death. That approach has been successful over the past few decades, under Governments of both colours, because road deaths have, mercifully, been decreasing.

Given the complexity of the subject, we do not propose to make the change that the shadow Minister suggests just now, but I can commit to conducting further research and investigation into the matter. The shadow Minister made the point about a longer disclosure period for driving causing other matters to be disclosed for a longer period than would otherwise be the case, with the consequent impact on employability. We will conduct further research into this area to ensure that we get the balance right and continue the positive direction of travel on safer roads, while at the same time ensuring that we facilitate rehabilitation.

[Alex Cunningham]

That is a helpful response from the Minister and I welcome the things that he had to say, particularly in relation to reviewing the issue in future. I do not intend to press the amendment to a vote. I understand that there is considerable cross-party support elsewhere for this approach to ironing out the anomaly, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

[Chris Philp]

The shadow Minister has already touched on the substance of the clause, so I do not want to repeat what he so eloquently laid out for the Committee a little earlier. In substance, the clause amends the Rehabilitation of Offenders Act 1974 to enable an individual’s conviction to be spent earlier than would otherwise be the case. The reason for doing that is to enable people to rehabilitate and get back into work sooner than would otherwise be the case. However, we recognise that for the most serious offences, we want the conviction never to be spent—hence the exclusion defined by offences covered by schedule 18 of the sentencing code, which we discussed a couple of minute ago. For other offences, both for adults and for people under 18, the spending periods are reduced.

The shadow Minister asked earlier how we arrived at those particular times. We have looked at the data on reoffending, engaged widely with stakeholders and various groups in the sector that have an interest in this issue, and we have arrived at the reductions that we have. We think the reductions strike a balance between providing an earlier opportunity for rehabilitation on the one hand, and providing additional public protection and protection for employers on the other.

Of course, no Government or Ministers have a monopoly on wisdom—except, of course, my hon. Friend the Member for Louth and Horncastle—but we think this is a good starting point and a step in the right direction, as the shadow Minister has said already. However, we will continue to research in this area and will keep it under scrutiny, to ensure that the balance struck is the right one. I am pleased that stakeholders generally, and the shadow Minister, welcome this move.

Question put and agreed to.

Clause 163, as amended, accordingly ordered to stand part of the Bill.

Clause 164

British Sign Language interpreters for deaf jurors

[Alex Cunningham]

I beg to move amendment 147, in clause 164, page 183, line 10, after “interpreter” insert

“or language and communication service professional”.

This amendment would expand the provision of the clause to include other language and communication service professionals such as interpreters for Deafblind People, lipspeakers, notetakers, Sign Language interpreters, Sign Language Translators, and Speech to Text Reporters.

--- Later in debate ---

[Alex Cunningham]

Clause 164 will amend the law to allow British Sign Language interpreters in jury deliberation rooms. This change will enable profoundly deaf people who use sign language to serve as jurors. The Opposition are supportive of the clause, and we are pleased to see the Government taking steps to include differently abled citizens in the processes of our criminal justice system. I pay tribute to my hon. Friend the Member for Nottingham South (Lilian Greenwood) for her work on behalf of deaf people, particularly on this issue.

Jury service is a centuries-old civic obligation. We all have to play our role when the time comes, and it is only right that deaf people should be able to play their part in society as equal to everyone else. As the former chief executive of the British Deaf Association, David Buxton, has said, the change was

“long, long, overdue but very welcome.”

The Royal National Institute for Deaf People also welcomed the clause, but thinks it could go further—a point I will come to when I turn to the Opposition amendments.

The Juries Act 1974 makes no provision for the maximum number of jurors; that is governed by common law, under which it is a long-established principle that a jury consists of 12 persons. It is common law that prohibits a 13th person.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

We all wish to do whatever we can to help those with a disability, but has the hon. Gentleman costed this for the taxpayer? Obviously, some trials go on for many days, and interpreters may charge £20, £30 or £40 an hour.

[Alex Cunningham]

It is a Government proposal to introduce interpreters in this situation, so perhaps the Minister can answer that question later. I would like the provision extended, as the hon. Gentleman will hear when I speak to the Opposition amendments.

The clause amends the common law “13th person” rule by adding new provisions to the 1974 Act to allow British Sign Language interpreters to assist deaf jurors, including in the course of their deliberations. The Government acknowledge in their equality impact statement that other individuals who might require the assistance of a third party will not benefit from the clause. The statement says:

“Where third party assistance is currently required in the jury deliberation room, efforts will be made to arrange for other jurors to provide this, wherever possible. For example, blind and partially sighted jurors can be assisted by a fellow juror reading out documents. However, we recognise this proposal is limited to profoundly deaf jurors who require a BSL interpreter and does not extend to other individuals with disabilities who, in order to serve effectively as a juror, would require the assistance of a third party (other than a fellow juror) in the jury deliberation room. We intend to keep this issue under review.”

It is welcome that the Government will keep the issue under review, but we could go further now. The Bar Council articulated the point well:

“If reasonable adjustments are to be made for jurors such as these who are otherwise disqualified, then adjustments should be made for all, otherwise a potential juror who is not able to understand British Sign Language (BSL) may feel discriminated against, as may a juror whose disability of disadvantage is not catered for by Clause 164.”

Could the Minister share with the Committee how his Department plans to review the extent of the provisions? I am sure the Committee would feel more comfortable moving forward with the clause if we knew a bit more about the Government’s plans in this area. It would be particularly good to hear whether there are plans to extend the use of the new provisions beyond people who are differently abled to people whose comprehension of English is insufficient for them to comprehend the proceedings fully.

I would welcome the Minister’s thoughts on another issue raised in the Bar Council’s submission to the Committee. It raised concerns about the position of a juror in retirement. Our jury system guards the collective nature of jury deliberations, in that deliberations are confidential, and nothing is allowed to influence them. Subsection (3) contains provisions on that matter, including measures that put an interpreter under the same restrictions as a juror as regards carrying out research and disclosing deliberations. It makes it an offence for the interpreter

“intentionally to interfere in or influence the deliberations of the jury”.

If the Committee will bear with me, I will quote at length from the Bar Council’s submission, as it raises an important, though hopefully rare, possibility that needs to be safeguarded against, and I would welcome the Minister’s thoughts on it:

“as soon as a thirteenth person is introduced into the jury, particularly during deliberations, the equilibrium of that jury is disturbed. All the input the hearing-impaired juror receives is via the interpretation—and the emphasis is on interpretation—of the thirteenth person, the interpreter.

That interpreter will have to control the deliberations so that they can interpret everything to the one juror. Any asides, cross-speaking or remarks which are not properly heard will not be transmitted and so the interpreter will become a sort of de facto second foreperson, controlling discussions. Inevitably their conduct will influence how the deliberations proceed.

Because a jury is kept private, any misconduct by any juror can only be reported by the other jurors. Although this does not happen frequently, it is not a rare occurrence; human nature being what it is. At present, anything amiss that occurs during deliberations is inevitably 16 witnessed by the rest of the jury, and if any single juror misconducts themselves the rest of the jury are obliged to report it. This is impossible in the case of the private communications between an interpreter and a deaf juror. Should either or both misconduct themselves, the whole premise upon which the integrity of the jury is based—that all witness the behaviour of each other—would break down and no one would know. For example, should an interpreter fail to interpret properly, no one would ever know. This is not to say that one should assume this will happen and that it is a reason not to permit interpreters. The fundamental objection is that the jury system can only work because it is the jury collectively which polices itself. That safeguard is removed if two people in retirement—the interpreter and the deaf juror—are participating in the deliberations in a way which the rest of the jury are excluded from and so cannot monitor.”

--- Later in debate ---

[Chris Philp]

Yes, I believe—in fact, I know, because it is written down in front of me; that is not quite the same thing, but let us assume it is for these purposes—that the provisions create a new offence where a BSL interpreter intentionally interferes in or influences the deliberations of the jury in the proceedings before a court. Yes, there are now criminal provisions being introduced by the clause.

I understand the spirit in which amendments 147 to 161were moved by the shadow Minister, and he mentioned that the hon. Member for Nottingham South assisted in their development. I understand that widening the type of people who might be able to assist could help a wider range of jurors, but there are some concerns about going too far, too quickly.

As the shadow Minister pointed out, this is a significant step. It is a significant departure from centuries of established practice. Allowing a 13th person into the jury room has never been done before. There is a feeling among the stakeholders we consulted—the judiciary, the Bar and so on—that we should take this one step at a time. Let us start with British sign language interpreters and see how that goes. If it is made to work successfully, as we hope it will be, we can look in due course at widening the range of people who might be accommodated.

There are also, I should add, potential capacity constraints. For example, I am told that there are 150 registered BSL interpreters, but only 32 speech-to-text reporters, so one might have issues with the number of available people. This is an important step. Let us take this one step first and then review it on an ongoing basis to see whether we need to go further.

[Alex Cunningham]

I accept the Minister’s explanation as far as the sanctity of the jury room is concerned, so I can leave that to one side. However, in his last few sentences he illustrated why there should be wider provision in this area: so few people are available to provide the services for the particular way he wants to take this clause forward and serve deaf people. I think there is a real opportunity to involve far more deaf people in the system. For that reason, I will press the amendment.

Question put, That the amendment be made.

--- Later in debate ---

[Chris Philp]

This is a quick and simple clause. The Office of the Parliamentary Counsel, which has been drafting this Bill, spotted a stray reference in an old piece of legislation to offences punishable by death in the context of jury sizes. It goes back to the concept of small war-time juries being unable to try certain offences where the penalty was death. We no longer have the death penalty, so the OPC thought it was a good idea to tidy up the statute book by removing the reference.

Question put and agreed to.

Clause 165 accordingly ordered to stand part of the Bill.

Clause 166

Remote observation and recording of court and tribunal proceedings

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 72, in clause 166, page 185, line 41, at end insert—

“(8A) The Lord Chancellor may not make regulations under subsection (8) unless the advice of the Senior Data Governance Panel (or similar committee established for this purpose) has first been sought on the provision which they would make.”

This amendment would require the Lord Chancellor to seek the advice of the Senior Data Governance Panel before making regulations governing the broadcast of court hearings.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clause 167 stand part.

[Alex Cunningham]

I will be brief. Clause 166 replaces temporary emergency provisions included in the Coronavirus Act 2020, which allows for certain proceedings to be observed remotely and recorded. At the same time as replacing these temporary measures, clause 166 would also extend them.

While the current emergency provisions cover only criminal provisions, clause 166 extends coverage to civil proceedings as well as proceedings across tribunals. The Opposition believe firmly in the principles of open justice. We believe the public should have a right to witness proceedings taking place, unless it is in the interests of justice not to do so. This is why we will support clause 166 today. Nonetheless, we have a reservation that we hope the Minister will be able to address.

Proposed new subsection 8 of clause 166 makes provision for the Lord Chancellor to make regulations to decide which types of proceedings can be broadcast and what factors must be taken into account before this can take place. These regulations can only be made if the Lord Chancellor agrees, but no other external stakeholders would be consulted in this process. This is why we have tabled amendment 72.

As I am sure the Minister will understand, legal proceedings often cover sensitive and painful topics and, for many, just attending court or tribunal will be a difficult time. For that reason, decisions regarding which types of proceedings should be broadcast should not be taken lightly.

--- Later in debate ---

[Chris Philp]

Clauses 166 and 167 put on to a permanent and sounder footing many of the measures that have been used during the coronavirus pandemic to, first, enable remote hearings to take place and, secondly, where proper, to allow transmission of those hearings. It is important to stress that at all times the judge retains control of the proceedings and it is ultimately for the judge in any particular hearing or trial to decide what is appropriate. Nothing in the provisions fetters that important judicial discretion and safeguard over the management of any individual hearing or proceeding.

On clause 166, over the past year, our courts and tribunals have successfully and rapidly moved the bulk of their proceedings online during the pandemic. Such hearings have been vital in our court recovery.

It should be noted that in the civil and family jurisdictions, and in tribunals, the ability to hold proceedings using audio and video technology is not governed by legislation, but is permissible under the court or tribunal’s inherent jurisdiction. Accordingly, no legislation is needed to enable remote hearings for those jurisdictions, in contrast to the criminal jurisdiction, for which clause 168, which we will consider shortly, makes provision.

Legislation is required to make sure that suitable safeguards are in place to protect those taking part in a hearing and ensure the proper administration of justice. Clause 166 replicates some of the temporary powers introduced during the coronavirus pandemic for that purpose, future-proofs them and brings several new jurisdictions into the regulatory framework. The clause also allows courts and tribunals to provide transmissions of proceedings either to individuals who have identified themselves and requested access, or to specifically designated locations.

As I have already pointed out, judges, magistrates and anyone presiding over a tribunal panel retain the ultimate discretion. Regulations made by the Lord Chancellor, with the agreement of the Lord Chief Justice, will govern much of this area and will enable the regulations to be refined for particular circumstances or applications.

Clause 167 makes several further safeguards in relation to this matter permanent, with a few minor refinements. For example, the clause prohibits the recording or transmission of anyone remotely attending proceedings in a list of major courts and tribunals, unless authorised by the court or tribunal or the Lord Chancellor. It also provides clarity by defining this offence as summary-only as well as contempt, while making new provisions to preclude double jeopardy. It enshrines some of those important safeguards.

On amendment 72, which was moved by the shadow Minister and would compel the Lord Chancellor to seek the advice of the Senior Data Governance Panel, we say that that is not necessary in legislation as set out here. Of course the Government do not make the relevant regulations in isolation. That is why secondary legislation can be brought forward only with the concurrence of the Lord Chancellor—a member of the Government—and of the Lord Chief Justice. The Lord Chief Justice’s concurrence is a very important safeguard.

Of course, in the formulation of regulations of this nature, informal consultation will take place with a number of bodies, including the SDGP, the judiciary, court practitioners, Her Majesty’s Courts and Tribunals Service and other interested parties. The SDGP does of course advise, but it is worth pointing out that the SDGP itself is not on a statutory footing and therefore perhaps it is not appropriate to give it the sort of status that the amendment proposes. That might also risk interfering with the notion of judicial independence. Therefore, although informal consultation with various stakeholders and experts is of course important, we think that the statutory obligation contemplated by amendment 72 goes a little too far.

[Alex Cunningham]

I am content with the Minister’s explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 166 and 167 ordered to stand part of the Bill.

Clause 168

Expansion of use of video and audio links in criminal proceedings

[Alex Cunningham]

I beg to move amendment 73, in clause 168, page 189, line 30, at end insert—

“(d) the court has been provided with a physical and mental health assessment of the person to whom the direction relates confirming that proceeding via a live audio link or live video link will not impede their ability to understand or effectively participate in proceedings.”

This amendment would require the court to be provided with a physical and mental health assessment of an individual before it could make a direction requiring or permitting them to take part in criminal proceedings through a live audio or video link.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 124, in clause 168, page 189, line 30, at end insert—

“(d) in the case of a direction relating to a person under the age of 18, the court considers that no other method of dealing with the person is appropriate.”

This amendment would introduce a presumption against a direction for a live video or audio link in criminal proceedings involving children.

Amendment 118, in clause 168, page 189, line 30, at end insert—

“(4A) The court may not give a direction under this section relating to the defendant in the proceedings unless that defendant has previously been given the opportunity to state whether they would prefer to appear in person and they have consented to appearing via live audio link or live video link.”

This amendment would provide defendants the opportunity and ability to choose to appear in person rather than via audio or video link.

Amendment 119, in clause 168, page 189, line 45, at end insert

“with particular reference to the following—

(i) where the person is a defendant, the existence of impairments or other factors that may negatively affect the defendant’s ability to participate effectively in court proceedings;

(ii) the nature of the hearing, including the complexity of the case and the matter being dealt with; and

(iii) the likely impact of the hearing on the rights of the defendant, particularly if it puts the defendant at risk of deprivation of liberty,”.

This amendment would require the court to consider a range of additional factors which may affect the ability of the person to participate effectively in proceedings when deciding whether a person should be able to participate via audio or video link.

Amendment 125, in clause 168, page 190, line 6, at end insert—

“(h) in the case of a direction relating to a person under the age of 18—

(i) any need for additional support for that person to enable them to take part in the proceedings effectively,

(ii) the requirement to ensure that that person understands the legal proceedings in which they are participating, and

(iii) whether there are other more appropriate means of requiring or permitting the person to take part in the proceedings.”

This amendment sets out a range of considerations which the court must take into account when considering a direction for a live video or audio link in criminal proceedings involving children.

Amendment 74, in clause 168, page 190, line 10, at end insert—

“(4) The Secretary of State may exercise the power in section 175(1) so as to bring this section (and part 3 of Schedule 19) into force only if the condition in subsection (5) is met.

(5) The condition in this subsection is that a review of the impact of the expansion of audio and video links in criminal proceedings has been conducted in accordance with subsection (6).

(6) The review mentioned in subsection (5) must—

(a) collect evidence of the impact of live audio and video links on—

(i) sentencing and remand decisions,

(ii) the effective participation of defendants,

(iii) the experience of victims and witnesses, and

(iv) the cost to the wider justice system, including costs borne by the police and prison systems; and

(b) be undertaken by a person who is independent of the Secretary of State.

(7) The review mentioned in subsection (5) may also consider any other matter which the person conducting the review considers relevant.”

This amendment would ensure that the expansion in the use of audio and video links will not be undertaken until an independent review of its impact has been undertaken.

Clause stand part.

Amendment 75, in clause 175, page 193, leave out line 37.

This amendment is consequent on Amendment 74.

[Alex Cunningham]

You will be pleased to know, Mr McCabe, that this will be my last substantial speech this afternoon. There are a couple of small ones to go, but this will be the last substantial one.

Clause 168 expands the use of video and audio or live links to a wide range of criminal proceedings. The Government hope that expanding the use of live links will allow courts to conduct criminal hearings remotely, with defendants, witnesses, lawyers, and possibly jury members attending remotely by audio or video link. The proceedings include preliminary hearings, trials before the magistrates and Crown courts, appeals and sentencing hearings, to name just a few.

The rationale behind the clause seems somewhat confused. As we know, the clause develops and expands the framework for remote justice that was developed during the pandemic. During the pandemic, video and audio live links were required as an exceptional measure to ensure that the wheels of the justice system could continue turning. That makes it all the more confusing that the Government are seeking to introduce clause 168 now, when thankfully we are in a different phase of the pandemic altogether.

I wonder whether the Minister will explain the Government’s thinking behind the clause—I am sure he will. Is it, as some have suggested, a safeguarding measure against, as unthinkable as it is, another pandemic-type scenario hitting the country? If that is indeed the purpose behind clause 168, it is something that the Opposition could cautiously support, provided that certain safeguards were built into the clause. The Opposition accept that there are countless hearings—many of them administrative in nature—where live links would allow them to be completed more efficiently than proceedings in person. None the less, I hope that the Minister will accept that there are other circumstances and situations in which the use of live links could have a profound impact on fair trial rights. I will discuss that in detail when I come to our amendment shortly.

It is also important to point out that clause 168 goes quite some way beyond the measures implemented under the Coronavirus Act 2020. As the Minister will know, clause 168 would allow, for the first time, live links to be permitted by a court in respect of juries—in other words, remote juries. Although it is very welcome that the Government have introduced a number of safeguards in relation to remote juries—for example, jurors would not be able to take part from home, and parties would be able to appeal a direction for juries to sit remotely—the Opposition are still concerned by this new power. The Minister must accept that clause 168 as a whole, but particularly in relation to juries, represents a momentous change in our legal system, and it is concerning that it seems to be based on little evidence and has been put together largely without consultation. As Transform Justice points out:

“The government has claimed that video and audio links in the pandemic have been a huge success. But beyond the occasional announcement on the number of links used, we have no evidence on video and audio criminal hearings in the pandemic. No data has been systematically collected and no research published.”

That is why the Opposition have tabled amendment 74, which would compel the Government to seek a full independent impact assessment of the effects of clause 168 before the expansion of audio and video links could take place. The aim of the impact assessment is to show what impact the roll-out of live links would have on sentencing and remand decisions, the effective participation of defendants, the experience of victims and witnesses, and the cost to the wider justice system, including costs borne by the police and prison systems. I am sure the Minister will agree that these are fundamental questions that the Government must know the answers to before clause 168 can fully come into effect.

The Opposition understand that some benefits may come from the Government’s direction of travel in relation to remote juries, although as I said in my previous speech, those benefits are relatively limited. It is vital that they are not obtained by impinging on the central tenets of our justice system, which are access to justice and the right to a fair trial. If the Government are set on moving in this direction, I hope they can at least see the value in a series of safeguards that can help to ensure the safety and fairness of trials. Serious concerns about these reforms have been raised across the legal and justice sectors, and the input of those sectors has been invaluable. In particular, I thank Transform Justice, Fair Trials and the Legal Education Foundation for their constructive and considered engagement with these proposals. This series of amendments—73, 118, 119, 124 and 125—would introduce a range of sensible safeguards, and I hope the Government recognise their value.

Amendment 118 would give defendants the opportunity and ability to choose to appear in person, rather than via audio or video link. Research has shown that effective participation in court proceedings can be impeded if the defendant appears on video or audio link. This is because remote hearings can interfere with defendants’ rights to participate effectively at their own hearings, and to review and challenge information and evidence relevant to those proceedings. In their report of April last year, called “Preventing the health crisis from becoming a justice crisis”, the Equality and Human Rights Commission pointed out that

“poor connections cause important information to be missed”

and

“can cause disconnection and separation from people and legal process”.

The EHRC also looked at this issue in its report “Inclusive justice: a system designed for all”, in which it noted that defence solicitors and advocates highlighted:

“The separation between the defendant and their solicitor and/or court”.

It outlined that

“defendants may not have a full view of the court, or know who is present in the room at the other site…It was also noted that being alone for a video hearing, without support, can be difficult for some people.”

One defendant shared their experience with the court, saying that

“It wasn’t what I would call a real court because I was sat in a room all on my own with a screen but I couldn’t hear what was being said…I found it very difficult and I was unable to take part in it”.

Remote court proceedings can also affect the effectiveness of lawyer-defendant communications, undermining defendants’ ability to access legal advice and effective legal representation. Research by Fair Trials has found that lawyer-defendant communications have been badly affected during the covid-19 pandemic, meaning that defendants are finding it more difficult to consult their lawyers and to seek advice before, during and after court hearings. On top of that, a March 2020 report on video-enabled justice, funded by the Home Office and carried out by the Sussex police and crime commissioner in conjunction with the University of Sussex, found that

“The loss of face-to-face contact in video court can create challenges in terms of advocates developing trust and rapport with their clients”

and that

“appearing over the video link could make defence advocates less effective, particularly in relation to bail applications”.

There is also evidence suggesting that remote hearings disproportionately result in custodial sentences. That Home Office-funded report concluded that individuals whose cases were handled remotely were more likely to be jailed and less likely to receive a community sentence. Furthermore, the proportion of unrepresented defendants receiving custodial sentences was higher than the rate for represented defendants, and those sentenced in a more traditional court setting were more likely to receive fines or other community sentences.

I would be interested to hear the Minister’s thoughts on these findings, as they have very serious ramifications for our justice system as more hearings take place remotely. If the Government want to make changes, they need to take responsibility for the outcomes and not simply farm out that accountability to the judiciary, so I would like to hear what steps the Minister’s Department thinks we should take to safeguard against the outcomes I have just outlined.

--- Later in debate ---

[Chris Philp]

We have heard extensively from the shadow Minister on the clause, so I do not think I need to repeat too much of what he said about its purpose, save to say in summary that it enshrines the expansion of the use of, or enables the use of, video and audio links in criminal proceedings beyond that introduced last year in the Coronavirus Act 2020, which, as we have already discussed, has enabled a great deal of court recovery.

Clause 168 builds on that progress by moving the barriers, restrictions and inconsistencies in the current legislation, which limits the potential use of live links in criminal proceedings. It is vital to stress that nothing in the clause makes remote technology in any way compulsory or inevitable. It is always a matter for choice by the court, which may choose it for reasons of health, as we have during the pandemic, or have some other reason for thinking it is a good idea. The point is, we are creating a discretion and a power for the court to use. Indeed, some participants, including defendants, may want to exercise their own choice and say to the court—for a particular reason, perhaps the inconvenience of travelling—that they want to participate remotely. It might be easier for a witness to participate remotely, for example, rather than travel all the way to a court that might be a great distance away.

The flexibility that the clause enshrines could be useful in a wide range of circumstances. Those principles have been widely debated in previous clauses and are, broadly speaking, agreed.

The proposed amendments to the clause in essence seek to introduce a range of very specific safeguards to circumscribe or control the way in which the measures may be used by a judge. The Government view, however, is that the safeguards already built into clause 168 and its associated provisions do that already. Let me enumerate what those safeguards are, which I hope will assure the shadow Minister and anyone else listening.

First, the court—the judge—must decide whether it is in the interests of justice for a live link to be used. That is a critical test. In doing that, the court is required to consider

“any guidance given by the Lord Chief Justice, and…all the circumstances of the case”—

I stress, “all the circumstances”.

The amendments have tried to pick out various different, specific circumstances. Inevitably, that list will not be exhaustive—they might forget something—so by saying “all the circumstances”, we give the judge a wide range of discretion. Those circumstances expressly include “the views” of the person who might be invited to attend by live link, so if someone has a particular problem or objection, they may table it and say to the judge why they think it is not right for them to appear remotely, if they are invited to do so. Equally, of course, they might say to a judge, “I would rather participate remotely”, for some reason of logistics or something else.

[Alex Cunningham]

Will the Minister give way?

[Chris Philp]

I am conscious of time and the shadow Minister made a long speech, but on this one occasion, I will give way.

[Alex Cunningham]

I am keen for the Minister to understand that not all defendants who are offered the facility would be legally represented. They might not have appropriate advice about the benefits of appearing in person.

[Chris Philp]

Where someone appears without representation, obviously a whole number of issues are raised, of which this is just one small one. In those circumstances, the judge himself or herself will—and does—carefully talk the defendant through the implications. When someone is unrepresented, the issues are to do not only with live hearings, but all kinds of elements of the proceedings where ordinarily a barrister or solicitor would assist the defendant. In the absence of that, the judge has to lead them, ask them questions and ensure that their interests are properly accounted for by the court in a manner that is impartial and fair.

Another question under clause 168 and its associated provisions that the judge must consider is whether the person concerned could participate effectively in the proceedings. A number of the amendments talk about disability and so on. It is therefore worth enumerating again in more detail the circumstances that must be considered: the nature of the proceedings; whether the person can participate effectively by live link; the suitability of the live-link facilities; and the arrangements that could be put in place for the public to observe the proceedings. There are a lot of things there that the judge is already obliged to take into account to ensure that the interests of justice are served—that the defendant gets a fair trial, or that the witness or victim may participate properly.

On children, the courts already have a statutory duty to have regard to the welfare of children. It is important to acknowledge that there may be situations in which it is beneficial for a child, whether as a witness or a defendant, to appear by live link. It is important that the court can take a balanced judgment, rather than a presumption one way or the other. Critically, however, there is already a statutory duty to have regard to the welfare of the child.

I hope that I have demonstrated, or illustrated, with that long list of considerations that the matters of concern that the shadow Minister has properly raised already have to be taken into account. Ultimately, however, I do not think that it is appropriate for us to seek to legislate for everything in detail, as some of the amendments seek to do. Instead, I have set out the principles to rely on—the good offices and the sober judgment of the judge presiding over the case—to make sure that justice has been done. I have a great deal of confidence in our judiciary to ensure that the right balance is struck, as has been done throughout the pandemic. No one has suggested that, during the pandemic, any particular defendant or witness has been especially badly served. I have confidence in the judiciary to get these balances right, and I believe that the statutory basis of clause 168 is the right one.

[Alex Cunningham]

I have listened carefully to the Minister, but across the sector there are widespread concerns about these proposals and the lack of safeguards. It is important that certain safeguards are built into the Bill. Not even the judiciary are satisfied and even some of the reports that are required are insufficient in these particular circumstances.

However, my huge concern is always about children and what the Bill means for them in the system. The Minister talked about having confidence in the judiciary and their discretion. Well, the judge who decided to sentence that 17-year-old to 10 years’ imprisonment when he was stuck in a room somewhere in a local prison did not show much understanding of young people—all the more reason why we should legislate to put greater protections in the Bill, particularly for children.

I shall push amendment 73 to a vote.

--- Later in debate ---

[Chris Philp]

We are entering the final straight of the main section of the Bill and cantering towards the finish line.

In brief, clause 170 contains standard provisions around financial authority. Clause 171 introduces schedule 20, making a number of technical amendments to the Sentencing Act 2020. Clause 172 is a standard clause conferring powers on the Secretary of State to make any consequential amendments. Clause 173 gives the Secretary of State power to amend the sentencing code to incorporate changes to its provisions that are made by this Bill—nothing untoward there—and clause 174 is a standard clause setting out the territorial extent of the provisions in this Bill that we have debated for the last few weeks.

[Alex Cunningham]

Over the days of our debate, Opposition Members have pointed out areas where the Government’s resource assessments seem to be well out of step with the Government’s expectations of the Bill’s impact.

One particular area of concern is the impact on prison places. The Government’s impact assessment has come up with a total increase in the adult prison population of around 700 offenders in steady state by 2028-29. After the hours of debate that we have had on changes to provisions that will extend the custodial period for many sentences and increase sentences for some road traffic offences, I find that number completely implausible. To put my mind at ease, perhaps the Minister could share with the Committee the arithmetic that conjured that number up.

Incarceration is extremely expensive, so if the Government have underestimated the impact, I worry that prison budgets will be stretched even further when they are already at breaking point. If rehabilitation and support for the cycle of offending are to work, they must be properly resourced.

There are areas of the Bill where the Government have not even been able to make an assessment of the cost impact. For instance, in the impact assessment for the changes to detention and training orders, the Government say:

“There will be some individuals that spend longer on supervision in the community under this option, which would incur additional youth offending team costs. It has not proved possible to quantify these additional costs.”

Youth offending teams are so stretched that we have even had to table an amendment to ensure that the current provision of intensive surveillance and supervision is adequately funded across the country; otherwise, the range of appropriate sentencing options for children will be limited. I hope that the Minister can commit to ensuring that additional costs will be robustly monitored so that these services, which save the justice system in the long run by turning people away from offending, are provided with sufficient resource to do their jobs properly.

[Chris Philp]

I simply draw attention to the calculation set out in the extremely extensive impact assessment, which I am holding in my hand, and to the additional 10,000 prison places that are being constructed and the extra probation service personnel who are being recruited.

--- Later in debate ---

[Victoria Atkins]

Amendment 144 and new clause 74 are an administrative amendment and new clause to ensure that the provisions available under the Financial Services Act 2021 in relation to account freezing and forfeiture powers are available in Northern Ireland. It was not possible to get a legislative consent motion when that Act was passed. That clearly needs to be corrected to protect the good people of Northern Ireland, and we propose to do so through this clause.

Amendment 144 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

[Alex Cunningham]

I am sure you will rule me out of order if I am, Mr McCabe, but I just want to make a quick remark here. In some areas, the Government have been very receptive to the Opposition’s concerns—they have committed to carrying out a cost-benefit analysis and other assessments—but the Bill was rushed through to Second Reading after the White Paper, and it was only because of an unexpected delay that we were given sufficient time to prepare for Committee stage, especially considering the size of the Bill and the complexity of some of its provisions.

I hear Ministers are keen to get this Bill through Report and Third Reading before the summer recess, which starts in four weeks’ time. I would like reassurance from the Ministers that the work they have committed to undertake will be done in a timely fashion as the Bill progresses. Perhaps they will need a little more than four weeks to get the job done. It is no good having a cost-benefit analysis that shows that a provision is too expensive to be worth it if it is already in law and has come into force.

[Victoria Atkins]

I am surprised that the hon. Gentleman thinks that we have rushed into this. There was a period of some nine months, I think, between the White Paper and the introduction of the Bill and Second Reading. The Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South, and I have been very careful throughout the scrutiny of this Bill to make it clear where there is extra work to be done. The timeframes, as far as we are able to do so, have been provided.

We very much look forward to continuing to scrutinise the Bill, as the processes of this place and the other place continue in the time-honoured fashion. I am told that we have published impact assessments. Indeed, a great deal of work has gone into the Bill, and into the preparation of documents associated with it. I hope we will be able to continue the positive trends that have emerged during parts of the scrutiny of this Bill into next week. These are important measures and the Government want to pass them as quickly as possible to continue protecting the people we have been so keen to discuss in this Committee.

Question put and agreed to.

Clause 175, as amended, accordingly ordered to stand part of the Bill.

Clause 176

Short title

Question proposed, That the clause stand part of the Bill.